[Federal Register Volume 72, Number 180 (Tuesday, September 18, 2007)]
[Rules and Regulations]
[Pages 53161-53165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18234]
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AGENCY FOR INTERNATIONAL DEVELOPMENT
48 CFR Parts 727, 742, and 752
RIN 0412-AA30
Miscellaneous Amendments to Acquisition Regulations (AIDAR
Circular 2007-02)
AGENCY: U.S. Agency for International Development.
ACTION: Final Rule.
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SUMMARY: This final rule amends the USAID acquisition regulation to add
two new parts and four new sections in existing parts of the
regulation, as more fully discussed in the Supplementary Information.
USAID proposed these amendments in the proposed rule published on
November 4, 1998, as AIDAR Notice 98-2.
DATES: Effective Date: October 18, 2007.
FOR FURTHER INFORMATION CONTACT: M/OAA/P, Ms. Diane M. Howard, Room
7.08-31, 1300 Pennsylvania Ave., NW., U.S. Agency for International
Development, Washington, DC 20523-7801. Telephone (202) 712-0206;
Internet: [email protected].
SUPPLEMENTARY INFORMATION:
A. Background
AIDAR Notice 98-2 (63 FR 59501, November 4, 1998) proposed four
separate items to amend the USAID Acquisition Regulations (48 CFR
Chapter 7), or AIDAR. The AIDAR is USAID's supplement to the Federal
Acquisition Regulation (48 CFR Chapter 1), the FAR. The following
summarizes each item and the final action USAID is taking for each.
1. Item A of AIDAR Notice 98-2 proposed a new Part 712,
specifically section 712.101, ``Policy,'' to address a potential
conflict between an existing AIDAR clause, (48 CFR) 752.7008 ``Use of
Government Facilities or Personnel (APR 1984)'' and the policy stated
in (48 CFR) FAR Part 12. The latter states that the government will
follow customary commercial practice when acquiring commercial items.
The AIDAR clause prohibits the use of Government facilities or
personnel in the performance of the contract. The AIDAR clause does not
recognize situations in which the customary commercial practice may be
for the purchaser to provide facilities or personnel to the vendor. At
the time we proposed this new part, we considered the possibility that
USAID may provide Government facilities, such as office space and
equipment, to contractor employees providing commercial services such
as IT support or secretarial/clerical services in USAID facilities. If
commercial clients typically provide facilities and equipment for
vendors providing similar services in the private sector, then that
customary commercial practice would be inconsistent with the policy
stated in (48 CFR) AIDAR 752.7008. The proposed part 712 would have
required the contracting officer to comply with customary commercial
practice unless he or she obtains a waiver in accordance with (48 CFR)
FAR 12.302. However, the Agency received no comments on this proposed
rule and we have no indication that if providing facilities and
equipment is a common commercial practice, it has ever been a problem
in a USAID commercial contract. Therefore, we are withdrawing the
proposed new part.
2. Item B of the Notice proposed removing (48 CFR) Chapter 7
(AIDAR) Appendix I, ``USAID's Academic Publication Policy'' and adding
a new part 727 and subpart 727.4 ``Rights in Data and Copyrights.'' The
intent of this item of the proposed rule was to address four issues:
(1) To make the clause at (48 CFR) FAR 52.227-14, ``Rights in Data--
General'' apply to USAID's contracts performed overseas and awarded to
U.S. organizations, (2) to provide an alternate paragraph to add to
this FAR clause to reserve USAID's right to restrict release of data
when release may have a negative impact on the Government's development
or diplomatic relationship with the cooperating country, (3) to provide
guidance on Rights in Data coverage for overseas contracts with non-
U.S. entities, and (4) to incorporate some of the policies and
procedures in Appendix I that would be removed with the Appendix but
that should be retained, as being in the Agency's best interests.
We are withdrawing the parts of Item B that affected Appendix I and
retaining the current (48 CFR) Chapter 7, Appendix I in its present
form. USAID is developing a separate internal policy and regulation on
intellectual property. If this policy and regulation affects USAID
contracts, we will determine how the AIDAR should implement it and take
the appropriate action at that time.
We are, however, finalizing other sections of the proposed (48 CFR)
subpart 727.4, but we are amending the language from what appeared in
the proposed rule. The only commenter on the proposed rule pointed out
several instances where the wording was unclear about the intent of the
proposed revision, so we have clarified the wording to address this
comment.
We are finalizing the new subpart to address certain FAR
requirements that must be met in order for USAID to place limits on
release of data under our contracts, as originally explained in the
Supplementary Information in the proposed rule.
First, 48 CFR (FAR) Sec. 27.404(g)(3) states, ``* * * agencies
may, to the extent provided in their FAR supplements, place limitations
or restrictions on the contractor's right to use, release to others,
reproduce, distribute, or publish any data first produced in the
performance of the
[[Page 53162]]
contract, including a requirement to assign copyright to the Government
or another party, either by adding a paragraph (d)(3) to the Rights in
Data--General clause at 52.227-14, or by express limitations or
restrictions in the contract.'' Pursuant to (48 CFR) 27.404(g)(3), the
final rule also includes new language, at (48 CFR) 727.404(g) and (48
CFR) 752.227-14(d)(3), under which USAID asserts the right to require
contractors to assign copyright to the Government or another party.
USAID contracting officers will only assert such a right in accordance
with the principles as stated in (48 CFR) 27.402.
Second, the prescription for the FAR Rights in Data--General clause
(48 CFR 52.227-14) does not require its use in contracts ``to be
performed outside the United States, its possessions, and Puerto Rico,
in which cases agencies may prescribe different clauses (see paragraph
(n) of this section.'' 48 CFR 27.409(a)(1)(ii). Paragraph (n) states,
``Agencies may prescribe in their procedures, as appropriate, a clause
consistent with the policy of 27.402 in contracts to be performed
outside the United States, its possessions, and Puerto Rico.'' 48 CFR
27.409(n). Most USAID contracts are, in fact, performed overseas.
USAID's FAR supplement, the AIDAR, does not address either of these
requirements.
The proposed rule's new subpart, (48 CFR) 727.4, was intended to
address these deficiencies in the AIDAR. The commenter pointed out that
the wording of the proposed (48 CFR) 727.409(a) appeared to restrict
USAID contracting officers to using only (48 CFR) FAR 52.227-14, even
if another clause, such as (48 CFR) FAR 52.227-17 ``Rights in Data--
Special Works,'' may apply. Since the proposed rule's intent was not to
impose this kind of limitation, Sec. 727.409 in the final rule more
clearly states that contracting officers are to use whichever FAR
``Rights in Data'' clause best applies.
The prescriptions in the proposed rule also made distinctions
between U.S. entities and non-U.S. entities, in that the proposed rule
authorized contracting officers to adapt the FAR clause as necessary in
contracts with the latter and performed overseas, to comply with
applicable laws in the country of performance. The final rule removes
any distinctions between U.S. entities and non-U.S. entities, and
applies the FAR prescriptions to all contracts. The final rule
constitutes Agency procedures pursuant to (48 CFR) FAR 27.409(n).
When the contracting officer incorporates (48 CFR) FAR 52.227-14,
and if release, reproduction, distribution, or publication of data
first produced or specifically used by the contractor may be sensitive
to U.S. Government relations with the cooperating country, the new
subpart also prescribes an AIDAR clause contracting officers must use.
This new clause, at (48 CFR) 752.227-14, replaces the FAR clause's
paragraph (d) and requires contracting officer approval before the
contractor may release or reproduce such data.
3. Item C proposed a new section (48 CFR) 742.1170, ``Performance
monitoring and progress reporting'' and clause at (48 CFR) 752.242-70,
entitled ``Periodic Progress Reports.'' As explained in the
supplementary information in the proposed rule, the purpose of the
proposed sections was to provide USAID cognizant technical officers
(CTOs) with a means to tailor contractors' progress reporting
requirements so that the CTOs can best ensure that contractors are
performing in accordance with the contract's requirements and achieving
planned results. These AIDAR sections supplement (48 CFR) FAR Subpart
42.11 and internal Agency policies and procedures for monitoring the
results of our implementing partners.
The Agency implemented these new sections after approving a class
deviation to the AIDAR, through issuance of an internal directive, a
Contract Information Bulletin (CIB) 98-21, ``Contractor Progress
Reports--New AIDAR Coverage,'' on August 12, 1998. Since then, we have
identified some areas where the language can be improved for clarity.
We also received several comments on this item of the proposed rule, so
this final rule includes a few non-substantive wording changes from the
proposed rule.
One non-substantive comment asked that we ensure that the language
in Sec. 742.1170 and the clause at Sec. 752.242-70 are consistent
with each other and that the clause itself clearly states the
Government's rights. Another commenter pointed out that in Sec.
742.1170-4(b), the cognizant technical officer must advise the
contracting officer of any ``required'' action, and recommended
changing ``required'' to ``recommended'' to be consistent with the next
sentence. We agree with this recommendation. The same commenter went on
to point out that in the same section, the cognizant technical officer
must provide recommendations to the contracting officer in sufficient
time for the contracting officer to take necessary action, but the
regulation doesn't include a definition of what is a reasonable
timeframe, and recommended that we add a definition. We are including
additional language to establish a typical (but non-binding) timeframe.
In the same sentence, we also changed ``necessary'' to ``appropriate''
to more accurately reflect the nature of the kinds of recommendations
that are likely to result from this report (the last sentence of this
section makes clear that the contractor must comply with other
notification requirements in the contract).
Finally, the same commenter recommended adding language to
paragraph (b) in the new clause at Sec. 752.242-70 to make clear that
any withholding due to contractor delay in furnishing a progress report
also ends when the contractor submits the report. We accept this
recommendation.
Because none of these changes are substantive, we are finalizing
the rule with minor editorial changes reflecting the above comments, as
well as other minor changes from passive to active voice and for
clarity.
4. Item D proposed revisions to (48 CFR) Sec. 752.232-7,
``Payments under Time-and-Materials and Labor-Hour Contracts.'' The
current version of this AIDAR clause is a preamble to the FAR clause of
the same name, at (48 CFR) Sec. 52.232-7. We proposed to revise the
AIDAR section to (a) clarify certain terms used in the FAR clause and
(b) revise the clause to allow for a different withholding methodology
than the FAR clause at the time allowed. Task orders were and continue
to be issued by USAID contracting officers around the world and are
paid by paying offices also located around the world. Because the
Agency's financial management and contracting systems at that time were
not able to easily support the coordinated tracking of cumulative
withholdings per contract among several task order contracting officers
and their respective paying offices, we determined that a new
withholding methodology was in the Agency's best interests. The new
methodology proposed limited the withholding to one percent per task
order up to a maximum of $50,000 per task order, but with no limit for
the basic contract. We received no comments about this proposed
revision during the comment period, but we have received comments about
the ambiguity of the existing AIDAR clause, both before and after we
published the proposed rule.
The corresponding section of the FAR, (48 CFR) 52.232-7 was revised
in August 2005 (Federal Acquisition Circular 2005-05, 70 FR 43580, Item
III ``Payment Withholding''). After considering the discussion in the
supplementary information for this Item
[[Page 53163]]
of FAC 2005-05, we concluded that the need for withholding per task
order is no longer necessary. Any withholding should be the exception,
not the rule, and done only when the contracting officer must take this
step to protect the Government's interests. Also, the Agency has a
worldwide financial management system and is in the process of
acquiring a new contracting system, and these systems are better able
to track withholding at the contract level, regardless of where task
orders are issued or paid. For these reasons, we determined this item
in the proposed rule to be unnecessary.
Further, we now consider the existing AIDAR section to be
unnecessary as a supplementary preamble to the FAR clause, since the
prescription for the FAR clause addresses how USAID has traditionally
used this clause for payments under time-and-material and labor-hour
contracts. We are therefore removing the existing AIDAR clause through
this final rule.
B. Regulatory Planning and Review
This is not a significant regulatory action and, therefore, is
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
C. Regulatory Flexibility Act
The U.S. Agency for International Development certifies that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule does not
impose any costs on either small or large businesses; therefore, an
Initial Regulatory Flexibility Analysis has not been performed. This
final rule revises (48 CFR) AIDAR parts 712, 727, 742, and 752 to
require contracting officers to comply with customary commercial
practice or to obtain a waiver pursuant to (48 CFR) FAR Part 12 in
order to prohibit contractors from using government facilities or
personnel in a commercial services contract; allows contracting
officers to require contractors to obtain contracting officer approval
before releasing or publishing data first produced in the performance
of the contract, if the release or publication may have a negative
effect on the Government's development objectives or diplomatic
relationship with the cooperating country; and to specify progress
reporting requirements in contracts.
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the AIDAR do not impose any additional information collection
requirements that require the approval of the Office of Management and
Budget under 44 U.S.C. 3501, et seq. AIDAR Subpart 742 and the clause
at Sec. 752.242-70 supplement the progress reporting requirements
already included in (48 CFR) FAR Subpart 42.11 and are consistent with
any information collection requirements in the FAR.
List of Subjects, in 48 CFR Parts 727, 742, and 752.
Government procurement.
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For the reasons set forth in the Preamble, 48 CFR Chapter 7 is amended
as set forth below.
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1. Add part 727 to subchapter E to read as follows:
PART 727--PATENTS, DATA, AND COPYRIGHTS
Subpart 727.4--Rights in Data and Copyrights
Sec.
727.404 Basic Rights in Data Clause.
727.409 Solicitation provisions and contract clauses.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C.
2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR
1979 Comp., p. 435.
Subpart 727.4--Rights in Data and Copyrights
727.404 Basic Rights in Data Clause.
(a) through (f) [Reserved]
(g) When the contract includes a requirement for the contractor to
assign copyright to the government or another party, the contracting
officer shall incorporate (48 CFR) 752.227-14 and/or include an express
limitation or restriction in the contract. USAID contracting officers
will assert such a right in limited circumstances in accordance with
the principles as stated in (48 CFR) 27.402.
727.409 Solicitation provisions and contract clauses.
(a) When the contracting officer incorporates (48 CFR) FAR 52.227-
14, and if the release or publication of data first produced in the
performance of the contract may be sensitive to U.S. Government
relations with the cooperating country, the contracting officer must
use the clause at (48 CFR) 752.227-14.
(b) through (m) [Reserved]
(n) The prescriptions for provisions and clauses in (48 CFR) FAR
27.409 apply to all USAID contracts regardless of place of performance.
PART 742--CONTRACT ADMINISTRATION
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2. The authority citation for part 742 continues to read as follows:
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C.
2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR
1979 Comp., p. 435.
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3. Add subpart 742.11 to read as follows:
Subpart 742.11--Production, Surveillance, and Reporting
Sec.
742.1170 Performance monitoring and progress reporting.
742.1170-1 General.
742.1170-2 Applicability.
742.1170-3 Policy.
742.1170-4 Progress reporting requirements and contract clause.
Subpart 742.11--Production, Surveillance, and Reporting
742.1170 Performance monitoring and progress reporting.
742.1170-1 General.
Performance monitoring is a function of contract administration
used to determine contractor progress towards achieving the goals and
objectives of the contract and to identify any factors that may delay
or prevent the accomplishment of those goals and objectives.
Performance monitoring requires USAID personnel, particularly the
cognizant technical officer, to maintain adequate knowledge of the
contractor's activities and progress in order to ensure that USAID's
objectives, as stated in the contract's Statement of Work, will be
achieved.
742.1170-2 Applicability.
(a) This section applies to USAID non-personal, professional/
technical services contracts exceeding the simplified acquisition
threshold, but may be applied to other USAID contracts, if the
contracting officer and requiring office determine that doing so is in
the best interests of the Agency. The contracting officer must ensure
that this determination is documented in the contract file. This
section does not apply to personal services contracts.
(b) The underlying principles of FAR 48 CFR subpart 42.11 apply to
USAID contracts and are inherent to this section. However, not all of
the specific requirements and terminology in FAR 48 CFR subpart 42.11
are compatible with the types of technical assistance contracts usually
awarded by USAID.
[[Page 53164]]
Therefore, this section 742.1170 applies when the requirements of FAR
48 CFR subpart 42.11 do not meet USAID requirements or are otherwise
not appropriate.
(c) The progress reports discussed in this section are separate
from the performance evaluation reports prepared in accordance with FAR
48 CFR subpart 42.15 and internal Agency procedures, although they may
be used by USAID personnel or their authorized representatives when
evaluating the contractor's performance. Furthermore, the policies,
procedures, and limitations of this section do not apply to technical
reports, studies, papers, etc., the acquisition of which may be part of
or even the sole purpose of the contract.
742.1170-3 Policy.
(a) The contractor is responsible for timely contract performance.
Performance monitoring by USAID does not obviate this responsibility.
(b) The requiring office, particularly the cognizant technical
officer and the contracting officer, will determine how to monitor the
contractor's performance to protect the Government's interests, by
considering:
(1) The contract requirements for reporting progress;
(2) The contract performance schedule;
(3) The contractor's implementation plan or workplan;
(4) The contractor's history of contract performance;
(5) The contractor's experience with the services or supplies being
provided under the contract;
(6) The contractor's financial capability;
(7) Any other factors the requiring office, particularly the
cognizant technical officer and the contracting officer, considers
appropriate and necessary to adequately monitor contractor performance
(for example, the day-to-day working proximity of the cognizant
technical officer or contracting officer to the contractor's place of
performance).
(c) In monitoring contractor performance, the requiring office
(particularly the cognizant technical officer and contracting officer)
must utilize any of the contractor's existing systems or processes for
monitoring progress, provided that doing so is not contrary to the
terms of the contract. The requiring officer or cognizant technical
officer must not require anything from the contractor that is outside
the scope or terms of the contract or may result in claims of waivers,
of changes, or of other contract modifications. Further, progress
reports shall not require information already available from other
sources.
742.1170-4 Progress reporting requirements and contract clause.
(a) When the requiring office needs information on contract
performance status on a regular basis, the contracting officer may
require the contractor to submit periodic progress reports, tailored to
address specific contract requirements but limited to only that
information essential to USAID's needs in monitoring the contractor's
progress.
(b) Because the cognizant technical officer is the individual most
familiar with the contractor's performance, the contractor must submit
the progress reports directly to the cognizant technical officer. The
cognizant technical officer must review the reports and advise the
contracting officer, in writing, of any recommended action, including
any action needed to address potential or actual delays in performance.
The cognizant technical officer must so advise the contracting officer
in sufficient time, typically thirty days, for him or her to take any
action that the contracting officer determines is appropriate. The
requirements of this paragraph do not relieve the contractor of
notification requirements identified elsewhere in the contract.
(c) The contracting officer must insert the clause at 752.242-70,
Periodic Progress Reports, in solicitations and contracts that require
progress reporting, as specified in this section. The contracting
officer must include specific reporting instructions in the Schedule.
PART 752--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. The authority citation for Part 752 continues to read as follows:
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C.
2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR
1979 Comp., p. 435.
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5. Add section 752.227-14 to read as follows:
752.227-14 Rights in Data--General.
As prescribed in 727.409(b), insert the following clause:
Rights in Data--
General (OCT 2007)
The following paragraph (d) replaces paragraph (d) of (48 CFR)
FAR 52.227-14 Rights in Data--General.
(d) Release, publication and use of data.
(1) For all data first produced or specifically used by the
Contractor in the performance of this contract in the United States,
its territories, or Puerto Rico, the Contractor shall have the right
to use, release to others, reproduce, distribute, or publish such
data, except to the extent such data may be subject to the Federal
export control or national security laws or regulations, or unless
otherwise provided in this paragraph of this clause or expressly set
forth in this contract [see paragraph (d)(3) for limitations on
contracts performed outside of the US].
(2) The Contractor agrees that to the extent it receives or is
given access to data necessary for the performance of this contract
which contain restrictive markings, the Contractor shall treat the
data in accordance with such markings unless otherwise specifically
authorized in writing by the Contracting Officer.
(3) For all data first produced or specifically used by the
Contractor in the overseas performance of this contract, the
Contractor shall not release, reproduce, distribute, or publish such
data without the written permission of the Contracting Officer. The
government also may require the contractor to assign copyright to
the government or another party as circumstances warrant or as
specifically stated elsewhere in the contract.
752.232-7 [Removed]
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6. Remove section 752.232-7.
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7. Add section 752.242-70 to read as follows:
752.242-70 Periodic progress reports.
As prescribed in 742.1170-3(c), insert the following clause in
contracts for which periodic progress reports are required from the
contractor. The term ``contract'' shall be interpreted as ``task
order'' or ``delivery order'' when this clause is used in an
indefinite-delivery contract.
Periodic Progress Reports (OCT 2007)
(a) The contractor shall prepare and submit progress reports as
specified in the contract schedule. These reports are separate from the
interim and final performance evaluation reports prepared by USAID in
accordance with FAR 42.15 and internal Agency procedures, but they may
be used by USAID personnel or their authorized representatives when
evaluating the contractor's performance.
(b) During any delay in furnishing a progress report required under
this contract, the contracting officer may withhold from payment an
amount not to exceed US$25,000 (or local currency equivalent) or 5
percent of the amount of this contract, whichever is less, until such
time as the contractor submits the report or the contracting officer
determines that the delay no longer has a detrimental effect on the
[[Page 53165]]
Government's ability to monitor the contractor's progress.
Lynn Kopala,
Acting Procurement Executive.
[FR Doc. E7-18234 Filed 9-17-07; 8:45 am]
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